Every now and again, I attend a CLE that does more than satisfy the hours requirement. Occasionally, there is a seminar where I walk out of the room with a new set of tools to become a better lawyer. Such was the case with the Georgia Appellate Practice Seminar sponsored by the Appellate Practice Section of the State Bar of Georgia. I moderated a panel titled, “The Winning Brief: How to Capture the Judge’s Attention (And How to Lose it).”
When I introduced the panel, I confessed up front that I was shamelessly taking advantage of the situation. In essence, the panel was made up of people I would like to corner at a cocktail party and ask questions about how to write a brief until they run away or leap from a window to stop taking questions from me. Friday, they were a captive audience for well over an hour, and I had a big outline of questions prepared to ask them. I asked all the stuff I wanted to know about the most. I hope that the audience (and it was a big audience) didn’t notice that I was taking notes to try to remember as much as I could of what the panelists were saying. I’m going to share some of it with you here. Later this week, I will share with you the great lessons I learned from the panel that spoke on oral argument (most of the lessons they taught were things that I have learned over the years by making the mistakes and learning from them).
The panel was made up of Presiding Judge Herbert Phipps, from the Georgia Court of Appeals. Also on the panel was Judge Stephen Dillard and Judge Christopher McFadden. The practitioner on the panel was Gerard Kleinrock, who is the appellate division for the DeKalb County Public Defenders Office. I was trying to moderate the panel and take notes at the same time. So, there may be some wisdom that doesn’t make it here. I also may be giving the wrong panelist credit or not attributing some of it to anyone because I don’t remember who said what. So, here are things I learned moderating the panel on Oral Argument.
The Record, Not Just the Trial Transcript, is Very Important
The record was a recurring theme from the entire day. Panelists in several panels spoke about the record. Our panel spoke on the value of knowing the record, make sure that the right things get in it, and reviewing it. So, it is fitting that two of the most important lessons I learned relate to the record on appeal. Both of these lessons come courtesy of Judge Dillard.
First, Judge Dillard advised lawyers to get a personal copy of the record and put it into notebooks with the pages numbered just as they are numbered in the appeal. The idea is one of those very obvious things lawyers should do that I never thought of doing. It was the first of many moments during the day where the proverbial lightbulb turned on over my head. Your own personal copy of the record achieves several things. It saves you trips to the courthouse to look things up, particularly when you often need to see the record the most when it is 2:00 a.m. and you are in a caffeine-fuled writing spree. It also saves you the trouble of trying to figure out what page of the record corresponds to page seven of the Brief in Support of Motion for New Trial from below. Finally, the notebook is a tangible thing to take home and review as you prepare for oral argument and as you prepare to get up to speed to write the brief.
Help the Clerk Assemble the Appellate Record
Courtesy of Judge Dillard, another light bulb moment happened. Long ago, there was a not so efficient record clerk in a local courthouse. The record sat and aged in the courthouse unassembled. Finally, it went up. We lost the suppression motion, and we applied for Cert. The case was close and cert was granted. When the opinion issued, the justices voted 4-3 to affirm the trial court, and my client still sits in prison for trafficking in cocaine. Had the record gone up in a timely fashion, a justice who likely would have voted with us was replaced by one who voted against us.
Practice appellate law long enough and you will encounter a record that takes until the cows come home to assemble. Judge Dillard’s solution was to send your paralegal to the courthouse and assist the clerk with assembling the record. The other solution was discussed with the panel made up of clerks for the Court of Appeals and Supreme Court – submit your own record per the new court rules that allow you to do that. This will be the subject of yet another later blog post.
But the point is important. Don’t be passive about the record Be assertive about it. Get it assembled.
Don’t Lose Sight of the Elementary
Presiding Judge Phipps had a theme, and throughout a myriad of subjects, he returned to it. Remember the elementary things. Apparently, many briefs submitted to the court are so difficult to read that the judges spend a great deal of time simply figuring out what the argument is. Lawyers from both sides of cases sometimes never mention what relief they are seeking or trying to prevent or even what charges the appellant is convicted of. For Judge Phipps, the most valuable things to remember are also the most basic. He answered many questions with the preface, “remember the elementary point.”
Make Good Use of Authority
There were a few things about authority that annoyed the panel. For Judge Dillard it is the failure to provide pinpoint cites. For the other two judges, it was the habit some lawyers have of talking ad nauseum about the facts of appellate cases or stating some broad proposition and citing a case generally to support it. For Gerard Kleinrock, the best way to cite to authority is to include some quotation from the case that captures the essence of the rule or by proving a reference to the case’s language in a parenthetical cite.
The Heart of Every Winning Brief is a Good Story
I don’t remember who said this, but I thought it was just great: “Narrative ought to foreshadow the legal issues.” It’s a great aphorism that I’ll attempt to unpack here. Judges aren’t computers. They’re human beings, and story is important to them. You don’t just plug facts into cases and get a result. The story drives the case and gives the judges a reason to want for you to win. Also, the narrative foreshadows the legal issues. The Statement of Facts is not a place to recite every fact under the sun. It is the place where you tell the story that is relevant to the issues in your brief. Maybe the story is about a lesser included instruction uncharged or about a venue that was never established. Finding the winning issue is about finding the winning story.
If You are the Appellee, Write Your Brief Before You Read Theirs. Then Revise it.
Again, I don’t remember who said it. But I thought this advice was pretty spot on. By and large, it’s good to be the Appellee. I am the Appellee sometimes, and I highly recommend it. But there is one big challenge. It can sometimes be difficult to escape the frame the Appellant has put around the case. Yes, it’s your job to respond. But you can also take charge of the narrative instead of merely reacting or arguing on your opponent’s rhetorical turf. One way around is to write the Brief of Appellee before you get the Brief of Appellant. The process will help you frame the story. Of course, revisions will be necessary after the Brief of Appellant comes in.
Three Great Stylistic Pointers
From Judge McFadden on the selection of issues and on the construction of the brief: “Everything that does not add, detracts. Everything that does not illuminate obscures.” From someone else on the panel: “Don’t get bogged down in legalese” before you identify what the case is about. From Judge Dillard: “Make your brief look like a judicial opinion. There is no higher praise from an appellate court than for the language in your brief to make it into the opinion.”
And there really was so much more. But I was moderating and focused on facilitating the discussion. My notes and memory reconstructed these lessons, which I plan on integrating into my appellate practice. If I’ve left something out, please add your comment.